COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69956 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION ROBERT MELTON : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 12, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-328217 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. PATRICIA SMITH, ESQ. Cuyahoga County Prosecutor 4403 St. Clair Avenue., N.E. Cleveland, Ohio 44103 L. CHRISTOPHER FREY, ESQ. Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: Defendant-appellant Robert Melton, appeals from the judgment of the trial court wherein a jury found defendant guilty of theft in violation of R.C. 2913.02. On appeal, defendant's sole assignment argues that this conviction was contrary to the manifest weight of the evidence. For the following reasons, the judgment of the trial court is affirmed. This case stems from an incident in which defendant allegedly stole two new transfers from an RTA bus. The grand jury indicted defendant on one count of theft. The indictment also contained a "furthermore" clause stating that defendant had a prior conviction of receiving stolen property. After plaintiff pled not guilty, the case proceeded to trial on October 26, 1995. The state presented two witnesses. The first witness for the state was Judy Alexander, the driver of the RTA bus on the date in question. She stated that defendant frequently rode her bus and that he always used a transfer. On the night in question, she picked up defendant around 8:00 p.m. When he entered the bus, defendant placed his transfer in the fare box, but Alexander returned the transfer to defendant because it was valid for one more ride. She stated, however, that defendant demanded a new transfer valid for two more rides. Alexander denied defendant's request for a new transfer. Defendant then sat down. When the bus arrived at his destination, he returned to the front of the bus and again asked - 3 - for a new transfer. When Alexander again denied this request, defendant twice pushed the #8 button on the farebox keypad and two new transfers were presented. Defendant grabbed the two new transfers and exited the bus. Alexander tried to grab him but was unsuccessful. She then notified the RTA police officer, who detained defendant. The second witness for the state was Nicole Fletcher, a sergeant in the RTA police department. She arrested defendant after Alexander told her defendant had stolen the bus transfers. Upon booking the defendant, Fletcher learned that defendant was in possession of two expired transfers and no money. Defendant took the stand in his own behalf. He stated that he boarded the No. 11 bus with a female friend. He used two tickets to board the bus. They both exited at the corner of Woodland and Woodhill Avenues. Defendant then boarded the No. 12 bus driven by Alexander. He put one of the transfers into the fare box. He claims that when he asked for the return of the transfer, Alexander told him that the machine "ate" the transfer. He stated that he sat down because he still had one good transfer in his pocket. When he reached his destination, he asked Alexander for a good transfer. When she refused, he left the bus, he said, without touching the keypad or taking any transfers. The jury found defendant guilty as charged in the indictment, theft of property with a value of less than $300. The trial court sentenced defendant to six months in jail with - 4 - 1 credit for time already served. Defendant timely appealed raising one assignment, which states as follows: I. THE VERDICT FINDING ROBERT MELTON GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In this assignment, defendant argues that the jury's verdict was against the manifest weight of the evidence. The standard for evaluating claims that a conviction is against the manifest weight of the evidence has been summarized as follows: Here the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. State v. Martin (1983), 20 Ohio App.3d 172, 175. By finding defendant guilty of theft, the jury in the case sub judice did not clearly lose its way and create a manifest miscarriage of justice. The jury heard evidence from the bus driver that defendant twice asked for new transfers and that, after his requests were denied, he touched the farebox keypad twice and removed the new transfers. Although he was not found 1 Even though defendant has served his sentence, his appeal is not moot, because the prior conviction raised this case to a felony. In State v. Golston (1994), 71 Ohio App.3d 224, the court stated in the syllabus as follows: A person convicted of a felony has a substantial stake in the judgment of conviction which survives the satisfaction of the judgment imposed upon him or her. Therefore, an appeal challenging a felony conviction is not moot even if the entire sentence has been satisfied before the matter is heard on appeal. (Citations omitted.) - 5 - with the two valid transfers the driver said he took, neither was he found with even the one valid transfer he claimed he had--a claim that formed part of his defense. Because the jury was in the best position to choose between the conflicting versions presented by Alexander and defendant, the judgment of the trial court is not against the manifest weight of the evidence. Judgment affirmed. - 6 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, P.J., and NAHRA, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .